State of Iowa v. Mark Jacob Humphrey ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1453
Filed October 20, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARK JACOB HUMPHREY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Gregory G. Milani,
Judge.
Mark Humphrey appeals his conviction for third-degree burglary.
AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Greer and Badding, JJ.
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BADDING, Judge.
Mark Humphrey appeals after a jury found him guilty of third-degree
burglary. He contends insufficient evidence supports the jury’s verdict, and the
district court applied the incorrect standard in overruling his motion for new trial.
Finally, Humphrey contends he received ineffective assistance from his trial
counsel.
I. Background Facts and Proceedings.
N.B. was married to Humphrey in July 2018, but she had filed for divorce
and obtained a protective order to prevent Humphrey from entering the home they
once shared. When N.B. left the home to meet a friend on July 3, she locked the
three dogs she and Humphrey shared in the garage. Her neighbor then saw
Humphrey on the property “acting strange” by tampering with the camper that
N.B.’s grandparents kept there and going in and out of the garage. After learning
what her neighbor had witnessed, N.B. called the police and returned home. On
arriving home, she discovered the camper was gone, the rear garage door was
open, and the dogs were missing. Humphrey was ten miles from the house with
the camper and two of the dogs when law enforcement stopped him.
At trial, Humphrey testified that he needed a place to live and decided to
use the camper, which N.B.’s grandparents had allowed him to use in the past and
discussed selling to him. He also claimed he had taken and returned the dogs on
prior occasions after the protective order was in place. Humphrey testified that on
July 3, he contacted the sheriff to retrieve belongings from the garage and waited
two hours for their arrival without avail before opening the garage. He claimed that
when he opened the garage door, two of the dogs jumped inside his truck while
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the third dog ran off. He testified that he took the dogs with him because he could
not move them from the truck, claiming he planned to return them later. He
admitted he did not have permission to take the camper or the dogs that day.
II. Sufficiency of the Evidence.
Humphrey first contends the district court erred in overruling his motion for
judgment of acquittal because there is insufficient evidence to support his burglary
conviction. We review this claim for correction of errors at law. See State v.
Donahue, 957 N.W.2d 1, 7 (Iowa 2021). In doing so, we view the evidence in the
light most favorable to the State, which includes legitimate inferences and
presumptions that can be reasonably deduced from it. See id. We affirm if the
record contains substantial evidence to support the conviction. See id. Evidence
is substantial if it would convince a rational fact finder of the defendant’s guilt
beyond a reasonable doubt. See id.The trial court instructed the jury that to find Humphrey guilty of third-degree
burglary, the State had to prove he broke into or entered an occupied structure
without permission or authority and with the specific intent to commit a theft therein.
Humphrey challenges the sufficiency of the evidence on the latter element only,
arguing “his mere temporary possession of the dogs and camper does not amount
to an intent to commit a theft.”
The court defined theft for the jury as
1. Taking possession or control of the property of another, or
2. Taking property in the possession of another
without permission and with the intent to permanently deprive the
other thereof.
Regarding alternative 2 above, the State is not required to
prove who owned the property at the time of the taking.
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See Iowa Code § 714.1(1) (2018) (defining the crime of theft); State v. Schminkey,
597 N.W.2d 785, 789 (Iowa 1999) (holding that an intent to permanently deprive
another of property is an essential element of theft under section 714.1(1)).
Because there is seldom direct evidence of a defendant’s state of mind at the time
of the act, we look to the surrounding facts, as well as any reasonable inferences
drawn from them, in determining whether there is sufficient evidence to establish
specific intent. See Schminkey, 597 N.W.2d at 789.
Humphrey argues the evidence is insufficient to show an intent to
permanently deprive because he testified that he intended to return the camper
and dogs to N.B. as he had in the past. The jury, however, “is free to believe or
disbelieve any [evidence] as it chooses and to give weight to the evidence as in its
judgment such evidence should receive.” See State v. Thornton, 498 N.W.2d 670,
673 (Iowa 1993). “In fact, the very function of the jury is to sort out the evidence
and place credibility where it belongs.” Id. (internal quotation marks omitted)
(citation omitted).
Despite Humphrey’s claims that he intended to return the camper and dogs,
there is substantial evidence from which the jury could find he planned to
permanently deprive his former wife of them. Humphrey admitted to taking the
camper and dogs without permission. He did so when N.B. was out, in defiance
of a protective order. Humphrey testified that he was living in his truck in July 2018
and took the camper to have a place to stay. The jury could infer that Humphrey’s
need for a residence was more than brief or temporary. And in contrast to his
testimony that he planned to bring the dogs back, on cross-examination Humphrey
admitted, “I want those dogs with me every second of every single day.” Cf.
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Schminkey, 597 N.W.2d at 792 (noting there were “no admissions by the
defendant or statements from other witnesses that would indicate Schminkey’s
purpose in taking the vehicle”). On this basis, the jury could conclude Humphrey
intended to permanently deprive N.B. of the camper and dogs.
Because substantial evidence supports the finding that Humphrey had the
specific intent to commit a theft, we affirm the district court order overruling his
motion for judgment of acquittal.
III. Weight of the Evidence.
Iowa Rule of Criminal Procedure 2.24(2)(b)(6) allows the court to grant a
new trial “[w]hen the verdict is contrary to law or evidence.” A verdict that is
contrary to evidence means that it is “contrary to the weight of the evidence.” State
v. Nichter, 720 N.W.2d 547, 559 (Iowa 2006) (citation omitted). Under this
standard, the court weighs the evidence to determine whether a greater amount of
credible evidence supports the jury’s verdict. State v. Ary, 877 N.W.2d 686, 706
(Iowa 2016). We review a trial court’s ruling on a motion for new trial for an abuse
of discretion, while a claim that the court failed to apply the proper standard in that
ruling is reviewed for errors at law. Id. The court will grant a motion for new trial
alleging the verdict is contrary to the weight of the evidence “only in the
extraordinary case in which the evidence preponderates heavily against the verdict
rendered.” Id.Humphrey claims the district court failed to conduct an independent
evaluation of the evidence, instead deferring to the jury’s findings. The State
concedes that in orally overruling both the motions for judgment of acquittal and
new trial, the court cited only a sufficiency-of-the-evidence standard. But the court
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then clarified on the record that it was using a weight-of-the-evidence standard in
ruling on the motion for new trial. And in its written ruling, the court correctly cited
the weight-of-the-evidence standard for the motion for new trial, noting there is no
presumption favoring one side. The court then determined that the jury was not
influenced by mistake, prejudice, or other cause in reaching its verdict. See State
v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003).
While the district court did not specifically state that it had weighed the
evidence or made its own credibility determinations, the failure to do so does not
require reversal of the order denying the motion for new trial. “When making a
ruling on a motion for new trial, the trial court should state the reasons for its ruling.”
State v. Maxwell, 743 N.W.2d 185, 192 (Iowa 2008). But where a proper basis
appears in the record for the court’s decision, we are obligated to affirm. Id. A
proper basis appears from the record here.1
Humphrey’s testimony was at times rambling, confusing, and contradictory.
For instance, when asked whether he packed up the camper, Humphrey’s
digressive answer concluded with, “My response is that those dogs loved me. I
loved those dogs, been away from them for two weeks.” Although Humphrey
1 We find this case to be distinguishable from those that have vacated a ruling on
a motion for new trial for failing to apply the correct standard of review and weigh
the credibility of witnesses independently. See, e.g., State v. Scalise, 660 N.W.2d
58, 66 (Iowa 2003); Nichter, 720 N.W.2d at 559-60. We initially note that these
cases pre-dated Maxwell, 743 N.W.2d at 192-93. And unlike the court in this case,
the trials courts in Scalise, 660 N.W.2d at 66, and Nichter, 720 N.W.2d at 559-60,simply incorporated their rulings on the defendants’ motions for judgment of
acquittal in ruling on the new trial motions and, in doing so, viewed the evidence in
the light most favorable to the verdict. See State v. Nuno, No. 17-1963, 2019 WL
1486399, at *4 (Iowa Ct. App. Apr. 3, 2019) (distinguishing Scalise and Nichter on
the same basis). There is no similar problem here given the court’s correct
statement of the weight-of-the-evidence standard.
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testified that he intended to return the dogs, he also testified that he wanted those
dogs with him “every second of every single day.” He was unable to clearly explain
what he intended to do when he went to N.B’s house, testifying: “I just hadn’t seen
my dogs for—I’d been with that dog ever since he was basically born and I just
missed him.” As for his intentions regarding the camper, Humphrey testified, “we
had been discussing buying it . . . and we never got around to it.” When he was
stopped by police, Humphrey was on his way to a campsite on the Des Moines
River where he intended to stay “for a while.”
“This is not a case where the evidence supporting the verdict was so scanty
and the evidence opposing it was so compelling that the verdict must be
considered contrary to the weight of the evidence.” State v. Gilmore, No. 11-0858,
2012 WL 3589810, at *6 (Iowa Ct. App. Aug. 22, 2012). The record contains
conflicting evidence about Humphrey’s intentions for the camper and dogs. The
district court implicitly found the State’s evidence more credible than the defense.
See id.; see also State v. Boelman, 330 N.W.2d 794, 795 (Iowa 1983) (presuming
the court decided facts necessary to support its decision in the State’s favor).
While the denial of the motion for new trial was summary in nature, we cannot
conclude it amounted to an abuse of discretion. See Gilmore, 2012 WL 3589810,
at *6.
IV. Ineffective Assistance of Counsel.
Finally, Humphrey alleges his trial counsel provided ineffective assistance
by failing to object to hearsay testimony. Effective July 1, 2019, the legislature
amended Iowa law to eliminate a defendant’s ability to pursue a claim of ineffective
assistance of counsel on direct appeal from a criminal conviction. See 2019 Iowa
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Acts ch. 140, § 31 (codified at Iowa Code § 814.7 (2020)). Humphrey challenges
the amended statute on constitutional grounds, but our supreme court has rejected
such claims. See State v. Treptow, 960 N.W.2d 98, 107-08 (Iowa 2021) (rejecting
claims that the amendment violates a defendant’s rights to equal protection of the
law, due process, and effective assistance of counsel); State v. Tucker, 959
N.W.2d 140, 151 (Iowa 2021) (rejecting claim that the amendment violates the
separation-of-powers doctrine).
Because Humphrey appealed after the amendment took effect, we cannot
decide his claim. See Iowa Code § 814.7 (stating ineffective-assistance claims
“shall not be decided on direct appeal”); accord State v. Warren, 955 N.W.2d 848,
856 (Iowa 2021) (limiting consideration of ineffective-assistance claims to direct
appeals pending on July 1, 2019). He may pursue it in a postconviction-relief
proceeding. See Iowa Code § 814.7 (“An ineffective assistance of counsel claim
in a criminal case shall be determined by filing an application for postconviction
relief pursuant to chapter 822.”). We reject Humphrey’s invitation to adopt a plain
error rule based on our supreme court’s rejection of similar arguments. See
Treptow, 960 N.W.2d at 109.
AFFIRMED.