State of Iowa v. Andrew Rudolph Wulf ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0398
Filed February 20, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
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. AFFIRMED.
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.
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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
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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,
1
Each year, the Iowa Natural Resource Commission makes 6000 nonresident antlered
or any sex deer hunting licenses available. Iowa Code § 483A.8(3)(c). These licenses
are distributed by a drawing. Id. § 483A.8(3)(e).
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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 subsequent to leaving the premises gives rise to an inference
that the goods or services were obtained by deception.
Iowa Code § 714.1(3).
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As relevant here, deception is defined as, “Creating or confirming another’s
belief or impression as to the existence or nonexistence of a fact or condition which
is false and which the actor does not believe to be true.” Id. § 702.9(1). Also,
deception occurs when “[p]romising payment, the delivery of goods, or other
performance which the actor does not intend to perform or knows the actor will not
be able to perform. Failure to perform, standing alone, is not evidence that the
actor did not intend to perform.” Id. § 702.9(5).
Wulf claims there is not sufficient evidence in the record to show he
engaged in theft by deception. He states there is insufficient evidence to show he
obtained money from Rademaker, Granberg, and McMillan with the knowledge he
did not intend to provide fully guided hunts when he accepted payment. He points
out he provided successful guided hunt services in the past. He also points out he
provided some of the services—he paid for lodging for Rademaker and Granberg.
Wulf claims the State did not present sufficient evidence to show he did not intend
to fulfill his obligations.
We review claims challenging the sufficiency of the evidence to support a
conviction for the correction of errors of law. State v. Wickes, 910 N.W.2d 554,
563 (Iowa 2018). We will uphold a verdict if it is supported by substantial evidence.
State v. Ortiz, 905 N.W.2d 174, 180 (Iowa 2017). “Evidence is considered
substantial if, when viewed in the light most favorable to the State, it can convince
a rational jury that the defendant is guilty beyond a reasonable doubt.” State v.
Ramirez, 895 N.W.2d 884, 890 (Iowa 2017) (citation omitted).
For the offense of theft by deception, a defendant must have the specific
intent to deceive. State v. Williams, 674 N.W.2d 69, 72 (Iowa 2004). “Such intent
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or knowledge must exist at the time the defendant makes the promise of payment,
delivery, or performance.” State v. Rivers, 588 N.W.2d 408, 410 (Iowa 1998). The
intent to deceive may be shown by circumstantial evidence. Id.
Wulf’s website showed a picture of a lodge, which Wulf did not own.
Rademaker testified he went to the location for the lodge and found a partially
constructed building, which appeared to be abandoned. Wulf told Rademaker
there would be three meals a day, provided by an Amish cook.2 At the time, Wulf
received payment from Rademaker in May 2016, Wulf knew there was not a
completed lodge and there was not an Amish cook. McMillan also testified he
expected to stay in the lodge pictured on Wulf’s website when he booked a hunting
trip in May 2016.
Evidence of Wulf’s intent to deceive can also be found in Wulf’s failure to
provide the fully guided hunting services Rademaker and Granberg paid for.
Christopher Rullman, a former employee of Wulf’s, testified in a fully guided hunt,
“[a]s a guide, you pick up the hunters, eat dinner with the hunters, hang tree stands,
trail cameras.” Wulf did not provide these services for the hunters. At the time of
trial, Rullman was operating his own outfitting business. He testified when he
received payments from hunters he spent the money on leases, motels, food, gas,
trail cameras, tree stands, blinds, and processing. There is no evidence Wulf spent
money on any of these items, other than paying for Rademaker and Granberg to
stay in a motel and three or four meals for Rademaker.
2
During a telephone call shortly before Rademaker arrived, Wulf informed him the lodge
had not been completed and there was no Amish cook. We are looking, however, at the
question of Wulf’s intent at the time he received payment from Rademaker.
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Furthermore, Rademaker arranged with Wulf to go hunting in Iowa and
Missouri. Wulf told Rademaker he was going to use the $5000 he received to
obtain a lease on property in Missouri. In addition to not taking Rademaker to
hunting locations, as would be expected in a fully guided hunt, Wulf did not provide
Rademaker with any hunting locations in Missouri.
Looking at the circumstantial evidence presented in this case, we conclude
there is sufficient evidence to show Wulf had the specific intent to deceive and this
intent existed at the time he made promises of performance to Rademaker,
Granberg, and McMillan.
III. Hearsay Evidence
Wulf claims the district court erred by permitting Rademaker and Deputy
Josh O’Dell to provide hearsay evidence. The State claims Wulf did not preserve
error on this issue because he did not object at the time the statements were made
during the trial. Wulf asserts he did not need to object because the district court
made a definitive ruling on his motion in limine seeking to preclude the State from
“introduc[ing] evidence from statements made by hunters who are not testifying at
trial,” on the grounds of hearsay. The court ruled:
[T]he court will not allow hearsay, but the court will allow a witness
to testify that they saw or heard something negative which then
influenced their behavior as long as that testimony is otherwise
relevant on any charge. So a witness can conceivably testify that he
saw or read a negative account regarding the defendant and that
then later changed his behavior, but the court will not allow further
details as to how the account was negative or anything beyond that
he received negative information. I haven’t heard that the State was
planning to introduce officers’ testimony as to what other hunters
said.
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“[W]here a motion in limine is resolved in such a way it is beyond question
whether or not the challenged evidence will be admitted during trial, there is no
reason to voice objection at such time during trial.” State v. Tangie, 616 N.W.2d
564, 569 (Iowa 2000) (quoting State v. Miller, 229 N.W.2d 762, 768 (Iowa 1975)).
However, when a court’s ruling on a motion in limine is not resolved “in such a way
it is beyond question whether or not the challenged evidence will be admitted
during trial,” an objection is needed to preserve error. Id.
The district court ruled it would not permit hearsay evidence to be presented
during the criminal trial. Wulf claims statements by Rademaker and Deputy O’Dell
constituted hearsay. We conclude Wulf should have objected to the statements in
order to preserve error on his hearsay claims. See id.
IV. Ineffective Assistance
Wulf raises several claims of ineffective assistance of counsel. We conduct
a de novo review of claims of ineffective assistance of counsel. State v. Maxwell,
743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of ineffective assistance
of counsel, a defendant must prove (1) counsel failed to perform an essential duty
and (2) prejudice resulted to the extent it denied the defendant a fair trial. Id. A
defendant’s failure to prove either element by a preponderance of the evidence is
fatal to a claim of ineffective assistance. See State v. Polly, 657 N.W.2d 462, 465
(Iowa 2003).
A. Wulf claims he received ineffective assistance as defense counsel
did not challenge the sufficiency of the evidence to establish he engaged in thefts
on a continuing basis, which was one of the elements of the offense of ongoing
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criminal conduct. He states there was no evidence to show he was going to
commit thefts in the future.
One element of ongoing criminal conduct is an “act . . . committed for
financial gain on a continuing basis.” Iowa Code § 706A.1(5); State v. Rimmer,
877 N.W.2d 652, 668 (Iowa 2016). In considering the term “continuing basis,” the
Iowa Supreme Court found there should be evidence of a pattern of activity, which
“can be shown if the predicate acts ‘have the same or similar purposes, results,
participants, victims, or methods of commission or otherwise are interrelated by
distinguishing characteristics and are not isolated events.’” State v. Reed, 618
N.W.2d 327, 334 (Iowa 2000) (quoting Midwest Heritage Bank v. Northway, 576
N.W.2d 588, 591 (Iowa 1998)). The court found continuity can refer to “a closed
period of repeated conduct” or “past conduct that by its nature projects into the
future with a threat of repetition.” Id. There may be a “continuing basis,” even
when the defendant’s acts occur over a short period time if there is a relationship
between the acts. See State v. Banes, 910 N.W.2d 634, 640–41 (Iowa Ct. App.
2018).
We find the evidence shows Wulf engaged in theft by deception on a
continuing basis. The thefts were similar in their nature, purpose, results, victims,
and methods of commission. See Reed, 618 N.W.2d at 334. The evidence in the
record shows Wulf repeatedly targeted out-of-state hunters by offering them fully
guided hunts in Iowa, obtained deposits from the hunters, and had no intention of
providing the promised services. Continuity here can be shown over “a closed
period of repeated conduct,” rather than by evidence of a future threat of repetition.
See id.
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Even if defense counsel had challenged the sufficiency of the evidence to
show the offenses were committed on a continuing basis, such a challenge would
have been unsuccessful. Defense counsel has no duty to pursue a meritless
issue. State v. Carroll, 767 N.W.2d 638, 645 (Iowa 2009). We determine Wulf has
not shown he received ineffective assistance of counsel on this ground.
B. On his hearsay claims Wulf raised an alternative argument, stating if
we found he had not preserved error on his claims, defense counsel was
ineffective for failing to object to the testimony during the trial.
Wulf notes Rademaker testified:
I believe [Deputy O’Dell] called me at first. He heard about
me through—there were other hunters in town here that knew me
from home that I weren’t aware were going to be here, and they had
issues with Andy as well. So they went to make a formal complaint,
and I believe they must have said something to Officer O’Dell about,
"You might want to talk to Paul.”
Rademaker also testified:
I actually overheard a few people in town and had people talk
with me, and the vibes I was getting and the things people were
saying, I just had a bad, bad feeling about this whole situation, and
the way he wasn’t responding and the way—excuses and excuses.
Deputy Josh O’Dell testified Rademaker went to a location “that he had been told
was Mr. Wulf’s base of operations, where he was at, was not able to find Mr. Wulf
there, found other hunters that were also there, also looking for Mr. Wulf, and
appeared to be in the same condition.”
Hearsay is an out-of-court statement “offered into evidence to prove the
truth of the matter asserted in the statement.” Iowa R. Evid. 5.801(c). “Evidence
is not hearsay if it is not offered to show the truth of the matter asserted.” State v.
Plain, 898 N.W.2d 801, 812 (Iowa 2017). “An out-of-court statement offered only
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to explain responsive conduct that is relevant to an aspect of the [S]tate’s case is
not offered to prove the truth of the matter asserted and is therefore not hearsay.”
Id. “Generally, an investigating officer may explain his or her actions by testifying
as to what information he or she had, including its source, regarding the crime and
the criminal.” State v. Elliott, 806 N.W.2d 660, 667 (Iowa 2011). However, “[i]f [an]
investigating officer specifically repeats a victim’s complaint of a particular crime,
it is likely that the testimony will be construed by the jury as evidence of the facts
asserted.” Id. (citation omitted).
We conclude the challenged testimony is not hearsay because it was not
presented for the truth of the matter asserted but was presented to show
responsive conduct. Rademaker’s first challenged statement shows how he came
to be in contact with Deputy O’Dell. Rademaker’s second challenged statement
shows why he decided to engage a different outfitter, although he had already paid
for a fully guided hunt from Wulf. The challenged statement by Deputy O’Dell also
explains Rademaker’s decision to find another outfitter at additional expense.
If defense counsel had made an objection to the statements on the basis of
hearsay, such an objection would not be valid as the statements were admissible
to show responsive conduct. See State v. Mann, 512 N.W.2d 528, 536 (Iowa
1994). “Counsel does not fail to perform an essential duty by failing to raise a
meritless objection.” State v. Lopez, 872 N.W.2d 159, 169 (Iowa 2015). Wulf has
not shown he received ineffective assistance of counsel on this issue.
C. Wulf claims he received ineffective assistance because defense
counsel did not request a cautionary instruction regarding non-testifying witnesses’
statements about their negative experiences with Wulf. Wulf claims if we
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“determine[ ] the evidence discussed above was properly admitted for a non-
hearsay purpose, counsel has a duty to request a limiting instruction.” Wulf cites
Iowa Rule of Evidence 5.105, which provides when evidence is admitted for a
limited purpose, “the court, on timely request, must restrict the evidence to its
proper scope and instruct the jury accordingly.” “Our rules of evidence allow
evidence to be admitted for a limited purpose even though that same evidence is
inadmissible for another purpose.” State v. Decker, 744 N.W.2d 346, 356 (Iowa
2008).
We determine the present record is not adequate for us to address this
issue on appeal. See State v. McNeal, 867 N.W.2d 91, 106 (Iowa 2015) (noting
we address claims of ineffective assistance of counsel on direct appeal only when
the record is adequate). “We prefer to reserve such questions for postconviction
proceedings so the defendant’s trial counsel can defend against the charge.” Id.
at 105 (quoting State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006)). “This is
especially appropriate when the challenged actions concern trial strategy or tactics
counsel could explain if a record were fully developed to address those issues.”
Id. at 105–06. We find this issue should be preserved for possible postconviction
relief proceedings.
D. Finally, Wulf claims he received ineffective assistance because
defense counsel did not argue the challenged statements by Rademaker and
Deputy O’Dell were inadmissible because they violated Wulf’s rights under the
Confrontation Clauses of the federal and Iowa constitutions.
“[T]he Confrontation Clause was intended to protect against the principal
evil of testimonial statements in the absence of the declarant.” State v. Kennedy,
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846 N.W.2d 517, 522 (Iowa 2014). “Courts can only admit these testimonial
statements in subsequent proceedings if the declarant is unavailable and there
has been a prior opportunity for cross-examination.” Id. Evidence is testimonial if
it “contains statements made in circumstances that would lead witnesses to
objectively believe the statements might be used at trial.” Id. at 523.
From the present record it is not clear if the statements at issue were
testimonial or not, and therefore, we cannot determine whether the Confrontation
Clause should be applied. As the State points out, the statements in question
might have arisen during depositions of witnesses who did not testify at trial. If this
is the case, then the witnesses might have believed their statements would be
used at trial. See id. If the statements arose under different circumstances, then
the statements might not be testimonial in nature. See id. We conclude the record
is not adequate for us to address this issue on appeal, and it may be raised during
postconviction proceedings. See McNeal, 867 N.W.2d at 106.
We affirm Wulf’s convictions for ongoing criminal conduct and two counts
of second-degree theft.
AFFIRMED.